Delaware Opens Dramatic Voluntary Disclosure Program Aimed at Businesses Holding Unclaimed Property Payable to the State of Delaware FRENCH SLAUGHTER, PARTNER T: +1 202 857 1745 fslaughter@mcguirewoods.com 2001 K Street N.W. Suite 400 Washington, DC 20006-1040 DAVID E. FINKELSON, PARTNER T: +1 804 775 1157 dfinkelson@mcguirewoods.com One James Center 901 East Cary Street Richmond, VA 23219-4030 December 20, 2012 www.mcguirewoods.com McGuireWoods news is intended to provide information of general interest to the public and is not intended to offer legal advice about specific situations or problems. McGuireWoods does not intend to create an attorney-client relationship by offering this information, and anyone s review of the information shall not be deemed to create such a relationship. You should consult a lawyer if you have a legal matter requiring attention.
In an effort to stem the backlash from Fortune 500 companies incorporated in Delaware that have long been the targets of the state s aggressive unclaimed property audits, the state has adopted a sweeping new Voluntary Disclosure program. This new program potentially differs substantially from the approach of the contingent fee contract auditors that Delaware has long relied on for audit enforcement of its unclaimed property laws. For Holders that meet the new Voluntary Disclosure requirements, Delaware will reduce the Holder s liability reachback period by 15 years, from 1981 to 1996, and waive all interest and penalties. This could reduce a typical Holder s potential liability dramatically. What is Unclaimed Property and Why is it Important to my Business? All 50 states have enacted unclaimed property laws requiring businesses and others (the Holders) to remit ( escheat ) to the proper state any monies or other property owed by the Holder to the property s Owner once the property remains unpaid or otherwise unclaimed ( dormant ) for periods ranging from typically one year to five years, depending on the type of property at issue. 1 The states then hold the turned-over unclaimed property until claimed by the lost Owners. That seldom occurs in practice. States are currently holding more than $41 billion in unclaimed property but only a percentage of that is ever reunited with lost Owners. Hence, unclaimed property has become an increasingly important (and permanent) source of revenue for cash-strapped states with none of the political and due process constraints that typically restrict states in collecting taxes and fees. 2 Why is Delaware Important to My Company s Potential Unclaimed Property Exposure? Unlike state income tax or sales tax, where the tax is generally due to the state in which the seller or buyer operates or resides, unclaimed property has a unique ordering protocol to establish the state to which a Holder must report and remit unclaimed property. The U.S. Supreme Court in 1965 imposed the following rule that remains the law of the land today: 1. If an Owner s last known address is found in the Holder s books and records, the Owner s unclaimed property is remitted to the state of that last known address; 2. But if that address is unknown, the property remits to the Holder s state of corporate domicile. As a practical matter, this ordering rule results in a substantial portion of unclaimed property remitted in the United States in the last 50 years being paid to the Holders states of incorporation, because most Holders simply cannot locate names or addresses for customers and vendors more than a few years old. 1 The types of property that states pursue as allegedly subject to escheat run the gamut from uncashed payroll and vendor checks to gift cards, accounts receivable items, securities, unclaimed life insurance proceeds, bank and mutual fund accounts, etc. The magnitude of these liabilities can be staggering. Two insurance companies recently announced unclaimed property settlements with the states. One insurer expects to owe more than $300 million in unclaimed property liability for uncollected life insurance proceeds and the second announced a $99 million charge to earnings. The insurance industry is only the latest of a series of industries targeted by the states for unclaimed property audits e.g., retailers, healthcare providers and banks. 2 Businesses that do not comply with their obligation to report and remit unclaimed property to virtually every state in which they operate are potentially liable not only for the unremitted property but also for substantial interest and penalties as well. In addition, unpaid liabilities for unclaimed property have often been cause for downward adjustments to purchase prices in M&A transactions, can give rise to violations of Sarbanes-Oxley and have been a source for expensive whistleblower suits as well as class action shareholder litigation against management. Holding Unclaimed Property Payable to the State of Delaware Page 2
For example, Delaware requires Holders to reach back to 1981 for unclaimed property. Virtually no business in America has complete records of customer and vendor addresses going back 30 years. In the absence of specific records, Delaware and other states subject Holders to statistical sampling of their current operations the methodology of which has been established by the states and their contingent-fee auditors to establish an estimated liability for past years for which no records exist. Since lost Owners are by definition not identifiable for any of the years in which liability is determined by extrapolation, the states are confident of retaining 100 percent of remittances from all those years. Thus, the Supreme Court s mandate to use state of corporate domicile as the default rule has been a windfall for all the states, but none more so than Delaware. It is the domiciliary state of choice for 50 percent of all publicly traded companies and 63 percent of the Fortune 500. It is forecasting for FY2013 that it will take in $484 million in unclaimed property (its third-largest source of annual revenue). Therefore, if your company or any of its affiliates are incorporated in Delaware and any of them have actual or potential areas of unclaimed property exposure, Delaware s unclaimed property law and practices, past and present, may be vitally important. The same importance adheres if you or your affiliates are organized as an LLC or formed as a partnership in Delaware, although Delaware s position that, for unclaimed property purposes, it is the state of corporate domicile for such nonincorporated entities is hotly and properly contested. Delaware s New Approach to the Holder Community in 2012 Delaware has long relied on private contract auditors to carry out its unclaimed property audits and paid out millions in contingent fees for their services. Its use of private firms paid a percentage of what they recover has led to many instances of perceived overreaching and abuses by the auditors (e.g., reopening closed audits). Recently, members of the wider Holder community took their complaints to the Delaware Governor, with some even threatening to leave the state to reincorporate elsewhere. In July 2012, Delaware responded to these concerns by enacting SB 258, which creates its new Voluntary Disclosure program for unclaimed property. At least on paper, and in the right circumstances, the program has the potential to deviate substantially from the onerous terms exacted when the Holder is audited by a contract auditor. Key differences between traditional Delaware audits and the new VDA terms include: Holding Unclaimed Property Payable to the State of Delaware Page 3
Terms Traditional Audit New Program Look-Back Period: Review Period: Interest and Penalties: Required review of books and records dating back to 1981. Audits can take up to five years to complete, and many last longer than that. Substantial penalties and interest potentially available on past-due unclaimed property, but subject to potential waiver. Review dating back to 1996 (or 1993 if the Holder executes VDA-1 after June 30, 2013, or fails to enter into a VDA-2 by June 30, 2014). The new VDA program is designed to be completed nine months after the kick-off meeting. No interest and penalties unless the Holder fails to reasonably adhere to the VDA work plan, in which case the secretary of state has the discretion to assess interest. IMPORTANT NOTE: Holders currently under audit by Delaware or who received notice of audit before enrolling in the VDA program are barred from participating in the VDA program. The state has announced that it will continue to maintain its current level of contract audit activity, so its auditors are now incentivized to increase issuance of audit notices to keep their inventory at current levels. Obviously, interested Holders need enroll quickly in the VDA program before they receive notice of audit. Early indications are that around 30 Holders are currently enrolled but Delaware expects as many as 500 Holders to apply before the application cutoff in 2014. Delaware s New VDA Program Has Very Tight Deadlines and Sunsets Altogether in 2015 June 30, 2013: Holders must enroll by June 30, 2013, to get the benefit of the 1996 look-back. June 30, 2014: By this date Holders must enter into a settlement agreement with Delaware and must remit all past-due unclaimed property by this date to enjoy the 1996 look-back period. In addition, no new Holders may enroll in the program after June 30, 2014. June 30, 2015: Program sunsets. All Holders who entered the program must have entered into an executed settlement agreement and remitted all past-due unclaimed property by this date. Conclusion Delaware s new VDA program for Holders is unprecedented for the state, with automatic 100 percent waiver of penalties and interest and shortening the reachback period by 15 years, from 1981 to 1996. However, it remains to be seen whether this new VDA program is in fact a legitimate path for fully and finally resolving outstanding unclaimed property obligations, or instead a mechanism by which Delaware secures information to be used in a future audit a criticism that has often been levied at Delaware s precursor VDA process. Also, in its carrot and stick approach to Holders, Delaware has left its aggressive and grueling contract audit program intact and fully operational. With Holders barred from the new VDA program if they come under audit first, Holders uncertain of their exposure should assess their situation quickly and closely in order to consider the best strategy for addressing their exposure, whether through participation in the new VDA process or through vigorous defense of Holding Unclaimed Property Payable to the State of Delaware Page 4
any audit that may be on the horizon. Holders that do elect to pursue the VDA must then commit internal and external resources to meet the program s very tight filing deadlines noted above. If you have an entity incorporated, organized or formed in Delaware you may wish to forward this alert directly to the entity s Corporate Secretary as we understand the Delaware Secretary of State may be contacting Corporate Secretaries directly about the new VDA program. Holding Unclaimed Property Payable to the State of Delaware Page 5